In re Dry Max Pampers Litigation

Case #

10-cv-00301

Case Name

In re Dry Max Pampers Litigation

Jurisdiction

US District Court for S.D. OH

Summary

Plaintiffs allege that disposable diapers sold by the Defendants which contained "Dry Max" technology caused severe skin reactions in babies who wore the products. The skin of children under the age of two is especially vulnerable to irritation and infection from chemical and microbial agents, such as those in the Dry Max products. Consumers reasonably purchased these products expecting that they would protect their babies, not cause skin conditions.

Final Approval Date

09/28/2011

Result

Final Approval granted.

Objector Greenberg (through Attorney Frank and his CCAF attorneys) appealed the Final Approval.

The Sixth Circuit reversed the decision of the District Court, finding that the injunctive relief did not provide a benefit to the class, as well as that the class representative awards were excessive.

Class counsel chose to further pursue the claims as a consolidated individual action, instead of as a class action.

Objection of Daniel Greenberg

Class cannot be certified, due to insufficient protections for absent class members.

In particular, absent class members are not able to opt out.

Release is over broad.

Class definition is overly broad.

Attorneys' fees are excessive when compared to injunctive relief.

Fee agreement contains signs of self-dealing.

Notice is inadequate.

Fee agreement was not made adequately available for class members to review.

Notice does not indicate the total value of the injunctive relief.

Cy pres recipient is not named.

Published notice reached an insufficient number of prospective class members.

Only beneficiaries are class members who have suffered no injury.

The Appellate Court reversed and remanded the decision of the District Court, based on the appeal of Objector Greenberg. In particular, the Sixth Circuit found that the injunctive relief was meaningless, since it merely directed class members to contact their child's doctor, something that any parent would do anyway when a severe skin reaction was observed. Class members were also able to exchange one box of diapers, as long as they retained the original receipt and the UPC code from the package (a recall provision that the Court noted the Defendant had taken on their own previously.) Finally, the Court found that incentive awards paid to class representatives compromised their duty to act as guardians for the class. The Sixth Circuit found Objector Greenberg's arguments to be "numerous, detailed, and substantive" (see Appellate Ruling, page 4).